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IIANDOUT NO. 17

SUGGESTED ANSWERS T() THE 2015

BAH. EXAMINATIONS
IN
POLITICAL LAW

I. The Philippines and the Republic of Kroi Sha established diplomatic

relations and immediately their respective Presidents signed the
following: ( 1) Executive Agreement allowing the Republic of Kroi Sha to
establish its embassy and consular offices within Metro Manila; and (2)
Executive Agreement allowing the Republic of Kroi Sha to bring to the
Philippines its military complement, warships, and armaments from time
to time for a period not exceeding one month for the purpose of training
exercises with the Philippine military forces and e~empting frorn
Philippine criminal jurisdiction acts committed in the line of duty by
foreign military personnel, and from paying custom duties on all the
goods brought by said foreign forces into Philippine territory in
connection with the holding of the activities authorized under the said
Executive Agreement.

Senator Maagap questioned the constitutionality of the said Executive

Agreements and demanded that the Executive Agreements be submitted
to the Senate for ratification pursuant to the Philippine Constitution. Is
Senator Maagap conect? Explain. ( 4 %)

SUGGESTED ANSWER:

The Executive Agreement allmving the Republic of Kroi Sha to

establish its embassy and consular offices within Metro Manila is
valid without need of submitting it to the Senate for ratification.
Executive Agreements are not treaties and are valid without the need
of concurrence by the Senate in its ratification. (Commission of
Customs v. Eastern Sea Trading, 35 SCRA 345 [1961/).
The Executive Agreement with the Republic of Kroi Sha
allowing it to bring to the Philippines its military complement,
warships and armaments from time to time for training exercises
with the Philippine military forces must be submitted to the Senate

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for concurrence in its ratification. Under Section 25, Article XVIII of

the Constitution a treaty duly concur-red in by the Senate is required
even for the temporary ptesence of foreign troops. (Bayan v. Zamora,
342 SCRA 449 f2000f).

Il. ( 1) A bill was introduced in the House of Representatives in order to

implement faithfully the provisions of the United Nations Convention on
the Law of the Sea (UNCLOS) to which the Philippines is a signatory.
Congressman Pat Rio Tek questioned. the constitutionality of the bill on
the ground that the provisions of UN CLOS are violative of the
provisions of the Constitution de lining the Philippine internal waters and
territorial sea. Do you agree or not vvith the said objection? Explain. (3%)

(2) Des-cribe the following maritime regimes under UNCLOS (4%)

(a) Territorial sea

(b) Contiguous zone
(c) Exclusive economic ;:one
(d) Continental she If

SUGGESTED ANSWER:

(1) The vast expanse of internal waters described by the

Constitution as separating the islands of the Philippine Archipelago,
without regard to breadth or dirnensi.on is part of state territory and
is subject to state soven_'ignty. It is not open to international
navigation exc\'pt with the express \:onscnt of the coastal state.
On the other hand, the UNCLOS transforms constitutional
internal waters into archipdagic waters which under Article 52
'"ships of all States enjoy the right of innocent passagc~"on the part of
archipelagic states such as the Philippines.
As to territorial sea, the expanse of the Philippine territorial
sea extends by 200 nautical miles up to the International Treaty
Limits (ITL) surrounding the Philippines Archipelago as drawn

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pursuant to Article Ill of the Treaty of Paris of 10 December 1898
and as constitutionalized undf:r Article I of the 1935 Constitution.
Undet the UNCLOS, such expanse of territorial sea collapse
and the IRL as boundaries of the Philippines disappeared and under
the UNCLOS the new boundaries arc drawn by the outer limit of the
new territorial seas of not exceeding 12 nautical miles from the
baseline. Thus, sovereignty indicated by the ITL also collapsed.

ALTERNATIVE ANSWER:

(1) The objection of Congressman Pat Rio Tek is not valid. The
UNCLOS has nothing to do with the :<H:quisition or loss of territory.
It is a multilateral treaty-- tegulating sea use rights and maritime
zones, contiguous zones, exclusive economic zones, and continental
shelves. Whether referred to as internal waters or archipelagic
waters, the Philippines exercises sovereignty over the body of water
lying landward of the baselines. (Magttllona v. Ermita, 655 SCRA 476
[2011/).

ANOTHER ALTERNATIVE ANS\VER:

(I) r do not agree.

"The UNCLOS is a product of international negotiation

that seeks to balance State so"cn:ignty (mare clausum) and the
principle of freedom of the high seas (mare liberum). The
freedom to use the world's marine waters is one of the oldest
customary principles of international law. The UNCLOS gives
to the coastal State sovereign rights in varying degrees over the
different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone,
and 5) the high seas. It also gives coastal States more or less
~: jurisdiction over foreign V(~ssels depending on where the vessel

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is located. Insofar as the intcrnai waters and territorial sea is
concerned, the Coastal State exercises sovereignty, subject to
the UNCLOS and other rules of international law. Such
sove1eignty extends to the air space over the territorial sea as
well as to its bed and subsoil." (Arigo v. Swift, G.R. No. 206510,
Sept. 16, 2014).

UNCLOS Ill does not define the internal and territorial

waters of states but merely "'prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the
Philippines."

'"UNCLOS III has nothing to do with the acquisition (or

loss) of territory." It is a multilateral treaty regulating, among
others, sea-usc rights over maritime zones (i.e., the territorial
waters [12 nautical miles frotn the baselines!, contiguous zone
[24 nautical miles from the baseHnesJ, exclusive economic zone
[200 nautical miles from the basciincsl), and continental shelves
that UNCLOS III delimits."

'"UNCLOS Ill and its andlhuy baselines laws play no

role in the acquisition, cnhngement or, as petitioners claim,
diminution of territory. l!ndcr traditional international law
typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by
executing multilateral treaties on the regulations of sea-use
rights or enacting statutes to (~omply with the treaty's terms to
delimit maritime zones and continental shelves. Territorial
claims to land features are outside UNCLOS Ill, and arc
instead governed by the rules on general international law."
(Magallona v. Ermita, 655 SCRA 476 f2011j).

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 (2)(a) The territotial sea is 12 nautical miles from the baselines. An
archipelagic state may draw straight archipelagic baselines
joining the outermost islands and drying teefs of the
archipelago, but the drawing of the baselines should not depart
to any appreciable extent from the general configuration of the
archipelago save for 3 percent of the total number of the
baselines. (Magallona vs. Ermita, 655 SCRA 476{2011/).
(b) The contiguous zone is a zone ('ontiguous to the territorial sea.
The maximum limit is 24 nautical miles from the baselines of
the territorial sea. It confers functional jurisdiction to prevent
infringements of customs, fiseal, immigration and sanitary
regulations. (Crawford, Bnn\-nli.e's Principle of Public
International Law, 8 111 ed., pp. 265-268).
(c) The economic zone extends no farther than 200 nautical miles
from the baselines of the territorial sea. The coastal state has
sovereign rights for the purpose of exploiting, conserving and
managing the natural resourc(~S of the waters superjacent to
the sea-bed and its sub-soil, and economic exploitation and
exploration, such as the production of energy. (Crawford,
Brownlie's Principles of Public International Law, 8 111 ed., p.
276).
(d) The continental shelf gives tiH~ coastal state rights to explore
and exploit the resources of the shelf by operation of law.
(Crawford, Brownlie's Principles of Public International Law,
8 111 ed., p. 276).

III. Professor Masipag who holds a plantilla or regular item in the University
of the Philippines (UP) is appointed as an Executive Assistant in the
Court of Appeals (CA). The professor is considered only on leave of
absence in UP while he reports for work at the CA which shall pay him
the salary of the Executive Assistant. The appointment to the CA position
was questioned, but Professor Masipag coumercd that he will not collect
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 the salary for both positions; hence, he can not be accused of receiving
double compensation. Is the argurnent of lhe professor valid?

SUGGESTED ANSWER:

Although Professor l\1asipag is correct m saying that "he can

not be accused of receiving doubh~ compensation" as he would not
actually be receiving additional or double compensation, it is
submitted that he may nevertheless not be allowed to accept the
position of Executive Assistant of the Court of Appeals during his
incumbency as a regular employee of the University of the
Philippines, as the fonner would be an incompatible office not
allowed to be concurrently held by him under the provisions of
Article IX-B, Section 7 of the Constitution, the second paragraph of
which specifics that "unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any
other office in the GovernmenL ';

IV. When is a facial challenge to th,; constitutionality of a law on the ground

of violation of the Bill or Rights traditionally allmvcd? Explain your
answer. (3 ~/o)

SUGGESTED ANSWER:

""In United States (US) '~onsiututional law, a facial challenge, also

known as a First Amendment Chalicnge, is one that is launched to
assail the validity of statutes concerning not only protected speech,
but also all other rights in the First Amendment. These include
religious freedom, freedom of the pn~ss, and the right of the people to
peaceably assemble, and to petition the Government for a redress of
grievances. After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly arc but component rights

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 of the right to one's freedom of expression, as they are modes which
one's thoughts are extcn1alized.

"In this jurisdiction, the application of doctrines originating from the

U.S. has been generally maintained, albeit with some modifications.
While this Court has withheld the application of facial challenges to
strictly penal statues, it has expanded its scope to cover statutes not
only regulating free speech, but also those involving religious
freedom, and other fundamental rights. The underlying reason for
this modification is simple. For unlike its counterpart in the U.S., this
Court, under its expanded jurisdiction, ts mandated by the
Fundamental Law not only to settle actual controversies involving
rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Governmentt." (lmbong v. Ochoa, 721 SCRA
146 [2014/).

V. BD Telecommunications, Inc. (BDTI), a Filipino-0\vned corporation,

sold its 1,000 common sharts of stock 111 the Philippine
Telecommunications Company (PTC) . a puhlic utility, to Australian
Telecommunications (AT), anotll,~T :.;tockholder of the PTC which also
owns l ,000 common shares. A Fli.ipino stockholder of PTC questions the
sale on the ground that it \viii increase the common shares of AT, a
foreign company, to more than 40% of the capital (stock) of PTC m
violation of the 40% limitation of foreign ownership of a pub! ic utility.

AT argues that the sale does not vioiate the 60-40 ownership requirement
,in favor of Filipino citizens decreed in Section ll, Article XII of the 1987
iConstitution because Filipinos still own 70% of the capital of the P'fC.
'AT points to the fact that it owns only 2,000 common voting shares and
1,000 non-voting preferred shares while Filipino stockholders mvn 1,000
common shares and 6,000 preferred shares, therefore, Filipino
stockholders still own a majority of the outstanding capital stock of the

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corporation. and both classes of shares have a par value of Php 20.00 per
share. Decide. (5/c))

SUGGESTED ANS\VEH:

"The application of the Grandfather Rule IS justified by the

circumstances of the case to determine the nationality of
petitioners ... the use of the Grandfather Rule as a "supplement" to
the Control Test is not proscribed by the Constitution ... "

"The Grandfather Rule, standing alone, should not be used to

determine the Filipino ownership amJ control in a corporation, as it
could result in an otherwise foreign corporation rendered qualified to
perform nationalized or partly nationalized activities. Hence, it is
only when the Control Test is first com plied with that the
Grandfather Rule may be applied. Put in another manner, if the
subject corporation's Filipino equity falls belovt' the threshold 60(%,
the corporation is immediately considered foreign-owned, in which
case, the need to resort to the Gaandfather Rule disappears. On the
other hand 1 a corporation that \.:omplics with the 60-40 Filipino to
foreign equity icquiremcnt can he t'onsidcrcd a Filipino corporation
if there is no doubt as to who has the "beneficial ownership" and
"control" of the corporation. In that instance, there is no need for a
dissection or further inquiry on the ownership of the corporate
shareholders in both the investing and invcstec corporation or the
application of the Grandfathet Rule. As a corollary rule, even if the
60-40 Filipino to foreign equity ratio is apparently met by the subject
or investee corporation, a resort to the Grandfather Rule is necessary
if doubt exists as to the locus of the "beneficial ownership" and
"control." (Narra Nickel lV/ining and Development Corporation v.
Redmont Consolidated Afil1es Corporation, G.R. No. 195580, January

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28, 2015)."' .. . the "doubt' 1 that demands the application of the
G ra ndfathcr Rule in addition to or in tandem ''vith the Control Test
is not confined to, or more bluntly, docs not refer to the fact that
the apparent Filipino mvnership of the corporation's equity falls
below the 60/o threshold. Rather, "doubt" refers to various indicia
that the "beneficial ownership" and "control" of the corporation do
not in fact reside in Filipino shareholders but in foreign stakeholders.
As provided in DOJ Opinion No. 165, Series of 1984, which applied
the pertinent provisions of the Anti-Dummy Law in relation to the
mm1mum Filipino equity requirement 111 the Constitution,
"significant indicators of the dummy status" have been recognized in
view of reports "that some Filipino investors or businessmen are
being utilized or [are! allowing themselves to be used as dummies by
foreign investors" specificaily in joint ventures for national resource
exploitation. These indicators arc:

"1. That the foreign investors provide practically all the funds for
the joint investment undertakcn by these Filipino businessmen
and their foreign partner~

''2. That the foreign investors umh~Ttake to provide practically all

the technological support for HH~ ,joint venture;

"3. That the foreign investors, while being minority stockholders,

manage the company and pnparc all economic viability
studies." (.Narra Nickel Mining and Developtnent Corporation v.
Redmont Consolidated lvline.<.,' Corporation, G.R. No. 195580,
January 28, 2015).

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 (Note: This question should have been a.-.,ked in Jli!ercantile Law. I
respect{itllv as/( that answer." (eaturl!JK.J.'he (oregoing discussion should
be accepted as correct).

VI. ( l) Distinguish the Presidem's authority to declare a state of rebellion

from the authority to proclaim a state or national emergency.
(2o/o)

(2) What are the limitations, if any, to the pardoning pmver of the
President? (3o/o)

SUGGESTED ANSWER:

The power of the }>resident to declare a state of rebellion is based on

the power of the President as chief executive and commander-in-chief
of the Armed Forces of the Philippines. It is not necessary for the

President to declare a state of rebellion before calling out the Armed

Forces of the Philippines to suppress it. The proclamation only gives
notice to the nation that such a state exists and that the Armed
Forces of the Philippines may be called upon to suppress it.
(San/aka.~., v. Executive SecretarJ', 421 SCRA 656{2004/).
In a proclamation of a state of national emergency, the President is
already calling out the Armed Fmc~s of the Philippines to suppress
not only rebellion but also hnv!ess violence. (David v. Arroyo, 489
SCRA 162 /2006}).
(2) The following arc the limitations to the pardoning pm-vt~r of the
President:
1. The President cannot pardon impeachment cases.
2. The President may grant pa1dons only after conviction
by finaljudgmenL
3. Amnesty requires tlH.' concurrence of the majority of all
the Members of Congress. (Section 19, Article VII of
Constitution)

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